Narsey Tokersey & Co. v. Sachindranath Gajanan Gidh

1. This is a notice of motion taken out by the plaintiffs for an injunction against defendants 1 and 2 from dealing with their interest in the joint family properties or receiving the sale-proceed a of the Picket Road property. There was a partition suit No. 2773 of 1927 is which defendant 2 in this suit sued defendants 1, 3 and 4 is this suit and also the mortgagee. In that suit the present defendant 1 was described as a minor on the ground that a guardian of his property had been appointed under the inherent jurisdiction of this Court. That, it was considered, extended the period of minority to twenty-one years. The present plaintiffs who claim to be creditors of the estate were ordered to be given notice during the trial of that partition suit and whilst it was before the commissioner to take the accounts so that they might have an opportunity to safeguard their interests before the commissioner. They attended and cannot now deny having notice of everything that took place in that suit. It is clear therefore, that they had notice that defendant 1 was alleged to be a minor.

2. The plaintiffs have, therefore, rushed into this notice of motion knowing that there is a dispute as to whether defendant 1 is or is nit a minor. They have sued him as a minor and they claim to do so on the contention that the period of minority is only extended to twenty-one yews in the event of a guardian of the property being appointed under the Guardians and Wards Act. But what I mark of importance, so far as this notice of motion is concerned, is that although the plaintiffs had notice that defendant 1, it was claimed rightly or wrongly, was a minor they have not asked for the trial of any issue on that point which would be the correct procedure to adopt before they took this notice of motion and certainly before they brought it on. If they first had knowledge of the contention that defendant 1 was a minor, after the notice of motion had been taken out, the proper course for them to have taken was to have stopped further proceedings an the notice of motion and immediately arrived at a consent order with defendant 1's attorneys to have the issue of minority determined and a guardian appointed ad litem purely for the purpose of deciding that issue. This they did not do but have added to the costs by bringing on this notice of motion. Now that it has been brought on, counsel for the plaintiffs says that he does not wish to press it until the issue is determined.

3. It might well be asked why than it was necessary to bring it on and acreage the costs? I therefore, piss the following order: That the issues be tried, (1) whether by reason of the appointment of a guardian of the property of defendant 1 under the inherent jurisdiction of this Court defendant 1 is a minor and (2) what was the date of defendant 1's birth.

4. With regard to the second issue I may state that when asked by the Court counsel for the plaintiffs stated that whilst he did not admit that 7th February, 1909 was the date of defendant 1's birth he was unable to say on what date his client alleged that defendant 1 was born: in other words he merely denies the date of birth and cannot put forward any other date. It appears to me that the whole of this proceeding up to the present has been unnecessary and taken only for the purpose of increasing costs and harassing the minor. I think it a vexatious proceeding, at any rate so far as the bringing on of this notice of motion is concerned.

5. Notice of motion is discharged. Plaintiffs to pay two separate sets of costs of this notice of motion as between attorney and client. The question as to the liability of the defendants, if any, should it be determined that defendant 1 is a minor, will be left over till the disposal of the two issues. Trial of these issues tomorrow. Mr. Fahey appointed guardian ad litem for the purpose of the trial of these issues.

R.M/R.K

6. Motion discharged.